TODD SEAVEY
author of Libertarianism for Beginners and writer of/speaker about many other things

Friday, January 9, 2009

Cass Sunstein Will Nudge You All

Obama is making Cass Sunstein his regulatory czar. This should prove an interesting test of whether personal connections trump political principle for some libertarians, since Sunstein has guest-blogged at the libertarian site Volokh.com (where they’re apparently happy with his appointment), taught law at the University of Chicago (where Jacob Levy knew him while teaching polisci there), probably got to know my old philosophy professor Martha Nussbaum’s libertarian daughter back when he was dating Nussbaum, and was spoken of as a great open-minded guy by Critical Review editor Jeffrey Friedman (as will presumably be seen in the transcript of CR’s fall 2008 Boston conference, which will reportedly appear in CR Vol. 22, issue 3, immediately after the passage in the transcript where I, in my capacity as a mere audience member at the conference, refer to Sunstein as a “statist monster”).

As suggested in some of my “Month of Feminism” and “Month of Liberty (i.e., Property)” blog entries (and, in more muted fashion, in my Reason.com article about “liberaltarians” that preceded both), I think it’s important to remember that people being willing to talk to you — even in an exhilaratingly highbrow, academic, and respectful fashion — is no substitute at all for getting good changes made in the law. Having liberal friends is nice, but it’s more important to cut the government’s budget and deregulate (more important to humanity at large, I mean, regardless of what benefits me most on a personal level).

Just as the ACLU’s Nadine Strossen is perfectly capable of talking in what almost sounds like a libertarian fashion about individual rights and free speech but then coming down on the non-libertarian, non-property-respecting side of an issue — as by saying that shopping malls must allow activists to speak or distribute literature on their property — so too does Sunstein talk, at times, like one of us (and talk to us, which is always appreciated) but then produce books explicitly arguing that (1) FDR’s statist revolution is an improvement upon or replacement of the original Bill of Rights, (2) property is a fiction disguising the fact that everything really belongs to the state in the first place, (3) we should “nudge” people with insidious and psychologically-tailored regulations to do the more-rational thing, (4) strict liability is preferable to caveat emptor and assumption of risk, etc., etc. And that’s just for starters.

Even the hated Bush administration has plainly been more friendly to real libertarian appointees, if you want to use that low standard. Indeed, Sunstein, for whom the Volokh Conspirators have found kind words, will be filling a post that was held under Bush by a full-fledged libertarian from the Mercatus Center, affiliated with the fine folks at the Institute for Humane Studies who I mentioned in yesterday’s entry. And though few noticed, we had a libertarian Acting Secretary of the Interior who came from the Reason Foundation for a while under Bush.

Ah, but Sunstein talks the brainy talk of academia, so that’s supposed to be some consolation to me when he commences oppressing me in a couple weeks. I’ll be watching him and his fans closely. That recent entry in which I said it’d be hard to turn libertarians into statists may have been overly optimistic. (And I am reminded that the split within conservative ranks that gave rise to the paleoconservative movement, for all its philosophical roots and anti-statist rhetoric, began in the 1980s not with the Cold War’s end but with an embarrassing apparatchik dispute: disagreement over whether to make retrograde Mel Bradford or neocon and future Culture11 co-founder William Bennett head of the National Endowment for the Humanities.)

6 comments:

Count me in as a libertarian who is happy with Sunstein’s appointment.

Sunstein is no libertarian but I think you lump together rather disparate things when you write:

“(1) FDR’s statist revolution is an improvement upon or replacement of the original Bill of Rights, (2) property is a fiction disguising the fact that everything really belongs to the state in the first place, (3) we should “nudgeâ€ people with insidious and psychologically-tailored regulations to do the more-rational thing, (4) strict liability is preferable to caveat emptor and assumption of risk, etc., etc.”

For instance I do think that a ‘nudge’, of the one-click variety Sunstein promoted in his Volokh posts, which *preserves choice* is not unlibertarian, or at any rate not as unlibertarian as the other three things you mention. Here’s how I see it, there is always going to be a default choice, and there is no grreat harm in tailoring the default choice in a particular direction, provided it is very easy to opt out. In any case, the (misleadingly named) libertarian paternalism is far preferable to the coercive paternalism many others advocate. Would you prefer the (Obama proposed, presumably Sunstein influenced) plan where employees are automatically enrolled in 401ks but can opt out at any time, or a plan (surely favoured by most liberals) that would make participation mandatory.

Sunstein is surely no libertarian. I have read a lot of stuff by him. And most definitely I do not agree with much of his views. Ultimately though, as I wrote on my blog, I agree with Volokh: he is brilliant, thoughtful, and ideologically probably as good as libertarians can hope for from the Obama administration. He is in my view the best pick Obama has unveiled so far.

To bring it full circle, while I was interning for the current head of OIRA in her pre-OIRA Mercatus days, my chief task was to produce a law journal article related to a Mercatus study. My first idea was to do a c/b type analysis on arsenic in drinking water regulations. I was all set to begin some fiery tirade only to discover that Cass Sunstein had already written on the same topic, from the same point of view, and had written it far better than I ever could have. So, on the bright side, maybe he’ll bring something of an econ-friendly, cost-benefit point of view to the other regulations he’ll be overseeing. Even if he is a statist.

Our country needs someone who will try to do something about the massive cruelty to animals that is involved in factory farms, circusses, etc. Hunting that is done for sport should not be permitted in a so-called civilized society. It’s in truth, just killing for fun.